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New Brunswick Court drops the e-discovery ball

Failing to follow the lead of other provinces such as Ontario and Nova Scotia, the New Brunswick Court of Appeal chose not to formally endorse The Sedona Canada Principles in The Wawanesa Mutual Insurance Company v. Wade 2015 NBCA 43 (CanLII) [http://canlii.ca/t/gk8jc]. While noting that the lower court had properly applied the proportionality principle found in New Brunswick’s Rules of Court, the NBCA said that the Sedona Canada Principles themselves were not relevant to the discovery motion. It did so after noting that New Brunswick has not amended its Rules to “embrace” the Principles, nor has any practice direction issued from its courts. The Court thus left “any further discussion of the Sedona Principles and their relevance in New Brunswick to another day”.

The NBCA missed the opportunity to endorse the Sedona Canada Principles in this decision. Having already found that the proportionality principle in the Rules of Court was properly applied, it could have done so without altering its findings on the merits of the case – that Rule requires NB courts to make orders and give directions that are “proportionate to what is at stake in the proceeding and the importance and complexity of the issues” – language similar to that used by Sedona Canada. Waiting for another day to adopt principles that make e-discovery more manageable and efficient is short sighted.

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